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LONICH PATTON EHRLICH POLICASTRI
1871 The Alameda, Suite 400, San Jose, CA 95126
Phone: (408) 553-0801 | Fax: (408) 553-0807 | Email: contact@lpeplaw.com
LONICH PATTON EHRLICH POLICASTRI
Phone: (408) 553-0801
Fax: (408) 553-0807
Email: contact@lpeplaw.com
1871 The Alameda, Suite 400
San Jose, CA 95126
Located in San Jose, Lonich Patton Ehrlich Policastri handles matters for clients in northern California, specifically San Jose and Silicon Valley. Our services are available to anyone within the following counties: Santa Clara, San Mateo, Contra Costa, Santa Cruz, Monterey, San Benito, and San Francisco. For a full listing of areas where we practice, please click here.
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The Importance of Prenuptial Agreements in Second Marriages: Safeguarding Personal Assets
/in Family Law /by Michael LonichPrenuptial agreements often receive a bad rap, mainly due to misconceptions about them. They’re frequently portrayed in movies and television shows as a safeguard, protecting an older, wealthy person from a gold digger’s devious plans.
In reality, prenuptial agreements are an effective legal tool. In marriages where one or both spouses have been previously married, unique financial dynamics are at play. There may be significant personal assets that need protecting, especially if either spouse has children from their previous relationship.
Understanding Prenuptial Agreements
A prenuptial agreement is a legally binding contract that both parties sign before marriage. It outlines how assets, debts, and other financial responsibilities will be handled during the marriage and upon its termination, whether by death or divorce.
While the details will vary, a solid prenuptial plan will include:
Why Second Marriages Need Extra Financial Protection
While many second marriages can last a lifetime, the statistics show a sobering reality. 50% of first marriages end in divorce, compared to a 60-70% divorce rate for second marriages.
When you remarry, it’s usually not just two people joining lives. Almost 40% of American families are blended, meaning there is at least one step-parent relationship. It’s essential to ensure that each spouse’s biological children inherit certain family assets. A prenuptial agreement protects the children’s inheritance while the couple builds their life together.
People getting married for the second time have typically established some wealth, such as:
These assets represent years of hard work. A prenuptial agreement ensures that they remain separate and don’t become subject to California’s community property laws.
Second marriages also involve ongoing commitments from previous relationships, including:
A prenuptial agreement provides clarification regarding these responsibilities so they don’t become a source of conflict during the marriage.
California’s Community Property Laws
California is a community property state, which means most assets acquired during the marriage are owned equally by both spouses. This includes:
Without a prenuptial agreement, your spouse could claim rights to half of everything you received during your marriage. This could be problematic if:
A valid prenuptial agreement can override California’s community property laws. You and your spouse can agree to keep certain assets separate during the marriage, establish your own property division rules if you divorce, and protect business interests from community property claims.
Taking Action to Protect Your Finances and Your Family’s Future
Prenuptial agreements are particularly crucial for second marriages, given California’s community property laws. A well-crafted agreement can provide peace of mind for you, your spouse, and your families. Our attorneys at Lonich Patton Ehrlich Policastri have the experience you need to ensure your prenuptial agreement meets your needs and complies with California’s Uniform Premarital Agreement Act.
Contact us at 408-553-0801 to schedule your free consultation.
Disclaimer: This article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.
Does Moving to Another State Affect Your Estate Planning?
/in Estate Planning /by Michael LonichPreparing to move almost requires a degree in logistics. It involves juggling numerous tasks, such as organizing and packing belongings, coordinating with movers, managing timelines, and ensuring that nothing gets lost or damaged in the process.
Various forms need to be updated, such as the USPS change of address, driver’s license, vehicle registration, and voter registration. Furthermore, each state has its own laws, and what is legal in your current state may be outlawed in your new locale. Does that also include your estate plan?
How State Laws Influence Estate Planning
Your estate plan consists of legal documents that dictate what happens to your assets and healthcare decisions if you become incapacitated or pass away. The core elements include:
Each state has its own rules regarding these documents. What’s valid in California might not meet the requirements in Texas, Florida, or New York. For example, in California, probate can be expensive and time-consuming, taking 12-18 months and costing 3-7% of the estate’s value. Texas and Florida have relatively efficient probate procedures with lower costs, whereas New York has complex rules that can significantly extend the process.
California vs Other States
California is one of nine states that recognize community property. Any assets acquired during the marriage belong to both spouses equally. Other states follow the common law property rules, where the person’s name on the title determines ownership. Moving from California to a common law state requires a review of how assets are titled and potentially an update to your estate plan to reflect the new ownership rules.
California doesn’t impose state estate and inheritance taxes. However, 12 states and the District of Columbia have their own estate taxes, and six states impose inheritance taxes on the beneficiaries. If you move to another state from California, you might need to restructure your estate plan to minimize the tax burden on your beneficiaries. This could potentially save your loved ones a significant amount of money.
If you continue to own property in California and purchase some in your new state, you need to consider that each piece of real estate is subject to the laws of the state where it’s located. You will also need to review your assets that are outside of your will and are passed on through beneficiary designations, such as life insurance policies, bank accounts, and retirement investments like a 401(k).
Your digital assets, including social media accounts and cryptocurrency holdings, also need to be addressed in your estate plan. Some states have adopted the Revised Uniform Fiduciary Access to Digital Assets Act, while others have limited or no specific laws governing digital assets. Complicating matters even more is the issue that tech companies may have their own policies that override state laws. Your estate plan should include provisions for digital estate management that comply with the laws of your new state.
Estate Planning Guidance from LPEP Law
Estate planning is complex, and interstate moves make it even more challenging. Our attorneys at Lonich Patton Ehrlich Policastri specialize in estate planning and are familiar with the differences between states. They can work with you to review and update your existing plan.
Contact us at 408-553-0801 to schedule your free consultation. Remember, estate planning isn’t a one-and-done task. It’s an ongoing process that should evolve with your life circumstances, including where you live.
Disclaimer: This article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.
Can I Have an Annulment if my Spouse is Deceased?
/in Family Law /by Gretchen BogerMost people think about divorce as the ending of a marriage, but under certain circumstances, an annulment is more appropriate. Legally, an annulment nullifies a marriage so that it’s as if it never occurred.
If your spouse has died, and you are dealing with inheritance issues, spousal debts, or other issues related to you or your spouse’s estate you might be wondering if an annulment, rather than a divorce, could be an option.
The short answer is that when your spouse dies, the marriage is legally ended by their death, so an annulment is not usually an option since that process applies while both parties are alive. However, if an annulment is necessary to protect the rights and the best interests of heirs, family members can sometimes pursue an annulment if certain conditions are true and provable.
What circumstances precipitate an annulment?
Legal Reasons for Annulments
There are several legal reasons for which a judge would grant an annulment of a marriage. In California, for example, a family court judge would grant an annulment in cases of:
Declaration of Invalidity
In lieu of an annulment, you might be able to seek a declaration of invalidity through the family court system, which is similar to an annulment, to try to challenge or clarify the legal status of the marriage. You would need to present significant evidence that the marriage was void from the beginning and therefore never valid legally. Void marriages involve issues similar to those required for annulment, including bigamy, fraud, lack of consent, mental incapacity, incest, and fraud. Similar to an annulment, the process to declare a marriage invalid usually occurs while both spouses are alive, but some jurisdictions might consider it after the death of a spouse.
Key Things to Consider
Embarking on a legal challenge after the death of a spouse can take a huge personal toll on you mentally, emotionally, and financially. You should weigh these costs and recognize all the potential outcomes and their impacts on your family, especially if you have children.
Since family laws related to annulments, declarations of invalidity, inheritance, spousal support, and more vary widely by jurisdiction, it’s important to consult with a family law attorney who specializes in this specific area of a law in your state of residence.
Get Help from Family Law Attorneys
The family law attorneys at Lonich Patton Ehrlich Policastri (LPEP Law) have years of experience helping families work through complex issues related to annulments, pre-nuptial agreements, property division, and inheritance. Schedule a free, no-obligation consultation to speak with our team about your case. Let LPEP help you protect your rights and your family.
Disclaimer: this article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.
Estate Planning Across Borders: Navigating International Family Dynamics
/in Estate Planning /by Michael LonichIn an interconnected world, international families are becoming more common. Loved ones may stretch across multiple continents in their search for more diversity and opportunities.
Estate planning can be daunting under normal circumstances. Factoring in family members living in another country takes estate planning to a whole new level.
How do you ensure your wishes are carried out and your wealth is allocated fairly across borders when laws, taxes, and cultural expectations vary? Estate planning for international families is more about paperwork. It’s also about striking a balance.
Key Challenges in International Estate Planning
Differences in legal systems, tax codes, and cultural expectations create challenges in international estate planning. Here are some of the key hurdles families may face:
Differing legal systems
Inheritance laws can vary significantly, affecting who inherits and the amount they receive. Some countries have a system of forced heirship, which means that the law dictates that a portion of the estate must be distributed to specific family members, regardless of what the will states. Other countries have more testamentary freedom and flexibility in determining how assets are distributed.
Tax Implications
Some countries have an inheritance tax, which can vary in rates and exemptions. They also vary whether they base their estate tax on the location of the assets or the domicile of the deceased. For example, countries such as the United States tax the worldwide assets of their citizens, regardless of where they live.
When creating an estate plan, it’s essential to consider the risk of double taxation. This occurs when the assets are taxed in the deceased’s country, but the beneficiaries also face a tax bill from their country of residence.
The United States does have tax treaties in place with several countries, including Canada, the United Kingdom, Germany, and France. Tax treaties on gifts and inheritances help mitigate the impact of double taxation.
Cultural and Family Dynamics
International estate planning also requires a balance between legal obligations and cultural expectations.
In certain cultures, primogeniture is the expectation in which the eldest son inherits most or all of the family assets. Other cultures tend towards an equal distribution of assets among all children, regardless of their gender or birth order.
Gender roles are another factor in estate planning. Some patriarchal societies don’t allow women to inherit assets, and property passes to the male relatives. This expectation can clash with legal systems that prioritize equal rights and look to ensure fairness among all beneficiaries.
These cultural differences can affect the recognition and enforceability of foreign wills.
Collaborate with LPEP Law
When crafting an international estate plan, it’s vital to work with experts who are familiar with cross-border issues. At Lonich Patton Ehrlich Policastri, our attorneys, with their extensive knowledge and experience, can guide you through the complexities of international estate planning. We can explain how to use treaties, trusts, and other legal tools to your advantage, giving you the confidence that your plan is in good hands.
Estate planning across borders can be complex, but we have strategies to create a plan tailored to your unique needs.
Contact us at (408) 553-0801 to schedule your free consultation.
Disclaimer: This article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.
Can a Child Custody Agreement Be Changed?
/in Family Law /by Virginia LivelyChild custody agreements aren’t set in stone, especially as life changes. What worked well when your child was three may no longer be ideal when they’re ten.
If you’re wondering whether a custody order can be modified, the answer is yes, but there are rules and procedures to follow, especially in California. Here’s what you need to know if you’re considering a change in your custody arrangement.
When Can a Custody Agreement Be Changed?
In California, a child custody agreement can be modified if it’s in the best interest of the child and if there’s been a significant change in circumstances since the original order was made. The courts generally want to maintain stability in a child’s life, so they don’t make changes lightly. Some common reasons that justify a change include:
How to Modify a Custody Agreement in California
Here’s how you can make modifications to a child custody agreement in California.
Work It Out Together (If Possible)
If both parents agree to the change, the process is usually smoother. You can draft a new parenting plan and submit it to the court for approval. The court will generally approve it as long as it serves the child’s best interests.
File a Request for Order (If You Don’t Agree)
If one parent wants to change the agreement and the other does not, the requesting parent must file a Request for Order (RFO) with the family court. This formally asks the judge to review and change the custody arrangement.
Attend Mediation
In California, you’ll likely be required to attend mediation with Family Court Services before the hearing. This gives both parents a chance to work out their differences with the help of a neutral third party.
Go to Court
If you still can’t agree in mediation, you’ll go to a court hearing where the judge will decide whether a change is warranted based on the evidence and arguments presented.
What Does the Judge Consider when Changing a Child Custody Agreement?
The California court always puts the child’s best interest first. Judges will consider:
Need Help Changing a Custody Agreement?
Yes, child custody agreements can be changed in California, but only when there’s a valid reason and the modification supports your child’s wellbeing. Whether you and your co-parent agree on the changes or need help from the court, it’s important to navigate the process carefully.
Our experienced family law attorneys at Lonich Patton Ehrlich Policastri are here to guide you through the process. Whether you’re pursuing an agreed change or facing a contested modification, we’ll advocate for your rights and your child’s best interests. Contact us today for a free consultation.
Disclaimer: This article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.